The legality of fanart fanfics fangames etc

[psy_commando]

I'm wondering what you think about the idea of fanart, fanfics, fangames, fanfilms, etc.. And how they are illegal but somewhat tolerated.

Being founder of a fangame myself, I must say this question is a constant preoccupation, since its always a possibility. I don't think I talk enough about it since it feels almost like its taboo, especially when you're trying to keep a team motivated..

I was pretty surprised when I found out that fanwork was illegal, even in the USA unless its a critic or if its satirical, and even then its suggestive.

If you don't believe me here's a good article : http://spiritto.devi...n-Art-214217357

I then tried to find a clear answer. So a few years ago, I found this :

Here's some guy's email to NoA about pokemon fangames ( http://www.pokecommu...ead.php?t=25132 ):

From: [email removed]

> > Posted At: 16:22:45.000 11/30/2004

> > Posted To: Nintendo <nintendo@noa.nintendo.com>

> > Subject: Webform: Software Related >

> >

> >Hello. I am emailing you to ask Nintendo's position on derivitive work-

> >specifically, fan games based on Pokemon. Would you give permission and

> >solicit a home-made amature fan game that will not be sold? They are not

> >parodies or criticisms, so they would not fall under the legal definition

> >of fair use and naturally requires your legal acceptance. The games would

> >not be sold in any way, would not impede on Nintendo's sales, and would

> >only help nurture interest in your products and allow creativity to be

> >expressed through your great concepts. I hope you understand, but if

> >Nintendo does not solicit derivitive fan games, I would be more than

>happy

> >to cease action in your interest without need of legal repricussion.

>Thank

> >you.

Quote:

> >From: Nintendo <nintendo@noa.nintendo.com> To: [email removed]

> >Subject: Re : Webform: Software Related > Date: Wed, 1 Dec 2004 07:32:33

> >--800

> >

> >

> >

> >Message(#6851-000385-02903850290)

> >

> >Hello and thank you for contacting Nintendo,

> >

> >We appreciate your interest in Nintendo of America Inc.

> >

> >Because we receive so many similar requests, our general policy is to

> >decline such use of our trademarked and copyrighted material. Although

>you

> >are not necessarily restricted from going ahead with your proposal, you

>are

> >restricted from using our trademarked and copyrighted materials in a way

> >which would suggest sponsorship, endorsement or association of such a

> >service by or with Nintendo.

> >

> >Thank you again for contacting Nintendo.

> >Nintendo of America Inc.

> >Nicolas Ramu

> >

> >Nintendo's home page: http://www.nintendo.com/

> >Power Line (Automated Product Info): (425) 885-7529

Quote:

>Thank you. Just so I understand fully, using the actual Pokemon logo, for

>example, would be against your policy, but making my own based on the

>"official" version would be acceptable? And so long as it is specified that

>I am not affiliated or endorsed by Nintendo, it's okay? Just making sure!

>

>Thank you

Quote:

>Subject: RE: Re : Webform: Software Related > Date: Wed, 1 Dec 2004

>17:38:49 --800

>

>Hi,

>

>Thanks for writing! To answer your questions, making your own logo should

>be okay, as long as you don't suggest sponsorship, endorsement, or

>association.

>

>Sincerely,

>

>Nintendo of America Inc.

>Kurt Wagner

>

>Nintendo's home page: http://www.nintendo.com/

>Power Line (Automated Product Info): (425) 885-7529

Quote:

What about using directly ripped graphics from the official games? Or is

that pushing it?

Quote:

Hello,

Taking graphics directly from a game would be, as you put it, "pushing it."

Nintendo owns extensive intellectual property rights in all of our products,

including systems, game titles, characters and game audiovisual works. To

protect our rights, we must exercise very close quality control over their use.

The same thing goes for images and information on our web sites. All content on

web sites operated by Nintendo of America Inc., including articles, artwork,

screen shots and other files, is copyright 1997 - 2004 by Nintendo of America

Inc., unless owned by a third party. Trademarks and copyrights for third-party

games and characters are owned by the companies that market or license those

products.

All content, including articles, artwork, screen shots and other files on our

sites may not be used on any other web site, in any publications or in public

performances.

Nintendo does not grant permission to individuals to use any content from our

web sites. Because we receive thousands of such requests, our policy is to

decline use of our trademarks and copyrights.

Sincerely,

Nintendo of America Inc.

J.J. Craig McClure

Sounds reasonable, but still pretty ambiguous, so then I tried with my own email:

If I make a free starfox fangame on pc based on the 1993 comics and game, would I get a cease and desist ?

Mr. Iwata said something ( http://kotaku.com/55...e-obsessed-fans ) about persecuting only what “socially diminishes the dignity or value of our intellectual propertiesâ€, what does this means exactly and is this true ?

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Hello,

Thank you for writing. I appreciate your interest in Nintendo and all our video game products. To us, it represents a great sign of success and recognition of the Nintendo brand. Unfortunately, I wouldn't be able to answer the questions you asked, as Nintendo cannot provide legal advice.

We are grateful for all the requests we receive for permission to use Nintendo properties; however, we receive thousands of requests and do not have adequate staffing to review them all. Therefore, our general policy is to decline all such requests, no exceptions. I realize this isn’t what you wanted to hear and thank you for understanding.

Although we are unable to grant permission, use of Nintendo properties without our formal permission may still be allowed depending on the circumstances. You are encouraged to seek your own legal counsel if you have any questions about whether your particular proposed use is permitted without Nintendo's authorization. This is not a comment on whether we believe your particular proposed use is permissible—Nintendo cannot provide legal advice.

Sincerely,

Alex Schuster

Nintendo of America Inc.

Result, he dodged my questions. I'm even more confused now.. Its like if they're afraid of saying a clear no, since clearly that's what they have going on.

And as if it wasn't messed up enough already some people actually take pride in reporting projects, and seem to enjoy the suffering of the people they've "put in trouble" (they were already technically in trouble) :

http://kotaku.com/55...e-obsessed-fans

What's funny is that I emailed them twice in the past about this (a Metroid 2 remake) and never got a response as to what they thought about it.

This dracosummoner guy didn't succeed in anything though, nintendo ignored him both times.

http://www.ign.com/b...cial.179058758/

Date Posted: Jun 9, 2009 #13

Hahah oh god when I created this topic (and it was purely created to make Square Enix think Crimson Echoes was highly anticipated and popular and going to be sold for money, btw), and sent that email, I never thought they'd actually shut them down. Hahah what a laugh. It's satisfying, to say the least, to think that I'm the one responsible for everything that happened to this project. It took them a while, but they sent out a C&D alright.

Guess that's what you get for ******* around with someone's IP, hope they learned their lesson now. Really, what did they think? "Hmm let's create a game made from their very own sourcecode and publicize it everywhere?"? Fools.

Also thanks to the people who replied to this topic for helping Square Enix believe CE was a big profile project and it was going to be sold for money.

As for the Compendiumites and Kagero peepz that might watch this, yes, I am still watching you every now and then. It amuses me greatly how much ruckus you make over something I set in motion.

LOLZZ JUST AS PLANNEDZZ.

Bye now.

Hellspawn is a really strange case, he actually did an elaborate bs campaign to present the Chrono Trigger : Crimson Echoes rom hack, as an official square enix title sold for profit, along with an e-mail posted to square enix. He is however inaccurate, they didn't use SE source code, since it was never leaked, they just re-purposed the existing engine much like a mod.

And in light of all this, do you think the copyright law is ambiguous, and easy to abuse ? What about fanwork, why people are doing that ? Is it fair ? Is this thread in the right forum ?

*EDIT* : I just found this awesome website of the OTW (Organization for Transformative Works), which supports fanwork : http://transformativeworks.org

[Hidi]

If you think copyright is easy to abuse, just look at China.

[psy_commando]

If you think copyright is easy to abuse, just look at China.

It was a question I didn't say that it was.

[CrypticQuery]

Copyright laws are becoming harder and harder to interpret in my opinion; there doesn't seem to be a single concrete set of guidelines anywhere, people who put these laws into place usually have little to no idea what they are doing and are simply doing it for lobbyist money, etc. I do think this country would benefit for a definitive legislation and ruleset on copyright, though there would no doubt be clashes and bribes if that were to happen.

Thanks for posting those emails though; they were an interesting read.

[Ellanie]

As someone who enjoys fanworks in most forms, what I've discovered is that it's mostly case by case, and a large part of it is based on if said fan artist is making any kind of money.

I think it is very wrong morally and generally illegal to make any money off of work derivative off of another's creation without full permission, so I don't support fan commissions, artist's alleys, doujinshi (however it is spelled), any of that since that zooms down the slippery slope that copyright laws have built.

On the other hand, I do think having a healthy fan community is vital. Word of mouth is one major part, but fanwork is a very strong way to build the reputation of a work, and it keeps fans interested long after the hype of the release is over, and in some cases brings in new ones, so it benefits the creators in the long run.

It also comes down to the original creator's personal feelings. Some enjoy that fans love and spread their work, others want to smite it, and why some get away with murder, and others throw out a cease and desist act at every corner.

[psy_commando]

As someone who enjoys fanworks in most forms, what I've discovered is that it's mostly case by case, and a large part of it is based on if said fan artist is making any kind of money.

Well from what I gather, the law makes no discrimination whether its for profit or not. Though, in the United States I know that the fair use law is open ended and could somewhat protect fanart. I'm no lawyer, though.

I think it is very wrong morally and generally illegal to make any money off of work derivative off of another's creation without full permission, so I don't support fan commissions, artist's alleys, doujinshi (however it is spelled), any of that since that zooms down the slippery slope that copyright laws have built.

I tend to disagree about fan commission, because you're basically hiring an artist, you're not buying a finished product.

Doujinshi is supposedly tolerated, because it actually makes the manga industry more productive ( http://en.wikipedia....opyright_issues )

On the other hand, I do think having a healthy fan community is vital. Word of mouth is one major part, but fanwork is a very strong way to build the reputation of a work, and it keeps fans interested long after the hype of the release is over, and in some cases brings in new ones, so it benefits the creators in the long run.

Yeah, if you don't let fanwork flourish, you can't count on word of mouth. Especially fansites. A fansite is also fanwork, and without fansites there would be quite a lot of franchises that would be dead by now.

It also comes down to the original creator's personal feelings. Some enjoy that fans love and spread their work, others want to smite it, and why some get away with murder, and others throw out a cease and desist act at every corner.

Well, generally, its not the original author that owns the IP, its the company he's in, or which bought the IP. The company's feelings pretty much limits at "I need more money". I believe it would be clearer if a neutral third party would decide of that.

And what do you mean "some get away with murder" ? :shock:

[Ellanie]

As an example, JK Rowling has expressed disgust over the popularity of x-rated Harry Potter fan related material, but she hasn't unleashed an army of lawyers upon the masses of HP fans because, whether she likes it or not, x-rated fan material keeps people into HP long after the series has ended, and thus indirectly makes her more money.

And Kodansha, a major Japanese manga publishing company, is currently trying to have a law put in place that will completely destroy the doujinshi market, though it's on SOPA levels of uglyness.

The issue with the law is Kodansha is trying to give themselves, a publisher, the same rights as the mangaka themselves, giving them the power necessary to send cease and desist to individual doujin artists. Mangaka themselves are against it mostly because it means publishers will have as much power over their creations as they will, which could easily lead to an ugly mess down the road when the rights author's have come into play, and royalties they currently have right to (and should have right to) if a manga is republished down the road.

[psy_commando]

As an example, JK Rowling has expressed disgust over the popularity of x-rated Harry Potter fan related material, but she hasn't unleashed an army of lawyers upon the masses of HP fans because, whether she likes it or not, x-rated fan material keeps people into HP long after the series has ended, and thus indirectly makes her more money.

Didn't she said that it was mostly fanfics of minors having sex that annoyed her ?

And Kodansha, a major Japanese manga publishing company, is currently trying to have a law put in place that will completely destroy the doujinshi market, though it's on SOPA levels of uglyness.

The issue with the law is Kodansha is trying to give themselves, a publisher, the same rights as the mangaka themselves, giving them the power necessary to send cease and desist to individual doujin artists. Mangaka themselves are against it mostly because it means publishers will have as much power over their creations as they will, which could easily lead to an ugly mess down the road when the rights author's have come into play, and royalties they currently have right to (and should have right to) if a manga is republished down the road.

I'm glad I don't have to pick a side in that debate.. Sounds like both sides are wrong. :|

[DZComposer]

Really, Nintendo can't just out and say "Fangames are OK." That's the kind of thing that can come back and bite them in the ass in the case of someone really being a douche and trying to make money off of Nintendo.

From what I have seen, Nintendo doesn't really care about people making fan works so long as that don't try to profit from them in some way (The Zelda fanfilm that the producers took to an indie film festival), releasing remade versions of Nintendo's games (Like the OOT remake), or cause potential confusion about Nintendo products.

Luckily, Nintendo doesn't treat fanart as a threat. Other companies do, though, so that is why you can't really look at other companies here.

In a nutshell, Nintendo has all legal right to stop fanworks if they wanted to, but they don't unless the works cross certain boundaries.

[psy_commando]

Yeah, I understand why they don't permit it, I can stay in the gray zone no problem, the problem is that I have no idea what their boundaries are, besides the above emails, and they won't tell me.

And that's interesting about the zelda fanfilm, I never heard he tried to make money with it.

They've also closed down that Pokémon MMO, http://www.joystiq.c...de-pokemon-mmo/ . Its hard to tell why, beside the fact that they've used official artwork and logos, but all the other Pokémon MMO out there do similar things.

[DZComposer]

It could be that there is no set standard and that they handle this kind of thing case-by-case.